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SCA/3638/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3638 of 2010
=========================================================
ODEDARA
VIKRAM RAJA - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance :
MR
VILAS G GOSWAMY for
Petitioner(s) : 1,
GOVERNMENT PLEADER for Respondent(s) : 1,
None
for Respondent(s) : 2 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 25/03/2010
ORAL
ORDER
By
way of this petition the petitioner has prayed for a direction to
declare that the petitioner is eligible and entitled to get
appointment on compassionate ground and further to direct the
respondent no.1 to consider the case of the petitioner on merits
without raising any technical point and give appointment to the
petitioner..
The
brief facts of the case are as under:-
2.1
The father of the petitioner was working in respondent no.2 school
as a Principal and died on 18.12.2000 during course of employment.
The petitioner had applied for the compassionate appointment on
13.2.2001, but the said application came to be turned down by the
respondents on the ground that the petitioner was minor.
2.2
After attaining the age of majority the petitioner had applied for
the appointment as peon on compassionate ground. The petitioner
thereafter moveed to the grievance reddressal programme of Chief
Minister vide letter dated 28.8.2007. The respondent no. 3 has
informed the petitioner vide letter dated 7.9.2007 that his proposal
is pending for consideration.
2.3
On 22.7.2008 under the Right to Information Act, the petitioner
came to know from the respondent no.4 that his proposal for
compassionate appointment was turned down by respondent no.1 on
8.2.2005.
2.4
Being aggrieved by the said order, the petitioner approached the
Gujarat Secondary Education Tribunal by way of application bearing
no. 160 of 2008. Ld. Tribunal after hearing both the parties
directed the respondents to reconsider the case of the petitioner
for compassionate appointment within period of three months.
2.5
Since there was no response from the respondents, the petitioner
issued notice on 28.4.2009. The said notice was replied by the
respondent vide letter dated 30.5.2009 stating that the in view of
G.R. dated 10.3.2000, the case of the petitioner cannot be reviewed
and therefore the application of the petitioner came to be rejected.
2.6
Being aggrieved by the said reply the petitioner has preferred
Execution Application no. 13 of 2009 before the ld. Tribunal and the
said application came to be disposed of holding that the
respondent no.1 is State and Tribunal has no jurisdiction against
decision taken by the State. Hence this petition.
The issue involved in this petition is squarely covered by the
decision of the Apex Court in the case of State Bank of India and
Anr. V/s. Somvir Singh reported in (2007)4 SCC 788 wherein the
Apex Court has observed as under :-
7.
Article 16(1) of the Constitution of India guarantees to all its
citizens equality of opportunity in matters relating to employment
or appointment to any office under the State. Article 16(2) protects
citizens against discrimination in respect of any employment or
office under the State on grounds only of religion, race, caste,
sex and descent. It is not so well settled and needs no restatement
at our end that appointment on compassionate grounds is an exception
carved out to the general rule that recruitment to public services
is to be made in a transparent and accountable manner providing
opportunity to all eligible persons to compete and participate in
the selection process. Such appointment are required to be made on
the basis of open invitation of application and merit. Departments
of employees died in harness do not have any special or additional
claim to public services other than the one conferred, if any, by
the employer.
9.
In Union Bank of India V/s. M.T. Latheesh this Court while dealing
with the similar question observed that indiscriminate grant of
employment on compassionate grounds would shut the door for
employment to the ever-growing population of unemployed youth.
13.
In our considered opinion, the High Court itself could not have
undertaken any exercise to decide as to what would be the reasonable
income which would be sufficient for the family for its survival and
whether it had been left in penury or without any means of
livelihood. The only question the High Court could have adverted
itself to is whether the decision-making process rejecting the claim
of the respondent for compassionate appointment is vitiated ?
Whether the order is not in conformity with the scheme framed by the
appellant Bank ? It is not even urged that the order passed by the
competent authority is not in accordance with the scheme. It is
well settled that the hardship of the dependents does not entitle
one to compassionate appointment dehors the scheme or the statutory
provisions as the case may e. the income of the family from all
sources is required to be taken into consideration according to the
scheme which the High Court altogether ignored while remitting the
matter for fresh consideration by the appellant Bank. It is not a
case where the dependents of the deceased employee are left without
any means of livelihood and unable to make both ends meet. The
High Court ought not to have disturbed the finding and the
conclusion arrived at the appellant Bank that the respondent was not
living hand-to-mouth. As observed by this Court in G.M. (D&PB)
v. Kunti Tiwary the High Court cannot dilute the criteria of penury
to one of not very well-to-do . The view taken by the
Division Bench of the High Court may amount to varying the existing
scheme framed by the appellant Bank. Such a course is impermissible
in law.
Further
in the case of Santosh Kumar Dubey V/s. State
of U.P. And Others reported in (2009)6 Supreme Court Cases 481,the
Apex Court has observed has observed as under :-
11.
The very concept of giving a compassionate appointment is to tide
over the financial difficulties that are faced by the family of the
deceased due to the death of the earning member of the family.
There is immediate loss of earning for which the family suffers
financial hardship. The benefit is given so that the family can tide
over such financial constrains.
12.
The request for appointment on compassionate grounds should be
reasonable and proximate to the time of the death of the bread
earner of the family, inasmuch as the very purpose of giving such
benefit is to make financial help available to the family to
overcome sudden economic crisis occurring in the family of the
deceased who has died in harness. But this, however, cannot be
another source of recruitment. This also cannot be treated as a
bonanza and also as a right to get an appointment in government
service.
On
the facts of the case I am of the view that when the family is
survived for a decade without compassionate appointment there is no
need of any compassionate appointment. Further in view of the above
decisions I do not find any merits in this petition. The petition is
therefore dismissed.
[K.S.Jhaveri,J.]
*Himansu
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